clean water act permitting and agricultural activities in minnesota

US Army Corps of Engineers

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Clean Water Act Permitting and Agricultural Activities in Minnesota

By: Desiree Morningstar Acting Chief, Northwest SectionSt. Paul DistrictU.S. Army Corps of Engineers

June 27, 2014

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Presentation Topics

• Section 404 of the Clean Water Act

• Permitting

• Exempt Activities

• Points of Contact

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Section 404 of the Clean Water Act

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A section 404 permit is required for the discharge of dredged or fill material into waters of the United States

The mission of our Regulatory Program is to ensure protection of the Nation’s aquatic resources while allowing reasonable development through fair and balanced decisions.

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Discharges of Dredged Material Dredged material is defined as “material that is excavated or

dredged from waters of the U.S.” A discharge of dredged material means “any addition of

dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the U.S.”

Discharges of Fill Material Fill material is defined as “material placed in waters of the

United States where the material has the effect of (1) replacing any portion of a water of the U.S. with dry land or (2) changing the bottom elevation of any portion of a water of the U.S.”

A discharge of fill material means “the addition of fill

material into waters of the U.S.”

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Under Section 404 of the Clean Water Act the Corps requires permits for discharges of dredged or fill material into waters of the United States in association with many types of activities

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The Bottom Line……..

Every permit application we evaluate follows a predictable evaluation process

The rigor of the analysis is dependent on the type of resource being impacted, the degree and magnitude of the impact, the extent of the overall project that is subject to Federal control, and the extent of the effects to the public interest

It is our job to objectively evaluate the application and determine if the activity complies with the Section 404(b)(1) guidelines and is not contrary to the public interest

Section 404 Permitting

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How we conduct our evaluations

Our permit evaluation process has three primary components: a NEPA evaluation, public interest determination, and a Section 404(b)(1) compliance determination

NEPA is a procedural requirement, the public interest review and Section 404(b)(1) compliance determination are substantive

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Public Interest ReviewSection 404(b)(1)

GuidelinesNEPA Evaluation

Combined Decision Document

Permit Decision

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General PermitsDeveloped for similar activities that individually and cumulatively have minimal effects

GPs include nationwide permits and regional general permits

Use of GPs provides for efficient and effective decision making

Letters of PermissionAn individual permit evaluated consistent with abbreviated processing procedures established by the district for impacts that are not controversial but do not comply with any available GP

Standard Individual PermitsAn individual permit with public comment opportunity and project-specific evaluation including Guidelines analysis, NEPA documentation and public interest review

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RGP-002-MN

Recognized Need Increase in potentially regulated activities on

agricultural lands Increased workload associated with regulated

activities on agricultural lands Trailing NRCS and state processes, resulting in time

delays for producers Timeframes associated with proposed work Complexities associated with jurisdictional

determinations/resource evaluations on agricultural lands

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RGP-002-MN

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Issued in August 2013 and expires in August 2018. Provides a predictable permit review time frame for

activities that have been determined to have individually and cumulatively minimal effects on the environment.

To extent possible, aligns with NRCS and state Wetland Conservation Act programs

Gives MN producers a permit process similar to neighboring states, which have access to Nationwide Permit 40

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RGP-002-MN

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Three primary categories of activities covered

1. Linear tile and culvert installation projects

2. Farmed wetland drainage projects

3. Installation of non-perforated drain tile in wetlands Structured to mimic the process in the nationwide

permits Relies on a well-established process used across

the country Corps must request more info within 30 days of

application, and make a decision within 45 days from receipt of a complete application

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Clean Water Act Exemptions

Section 404(f)(1)(A) of the CWA exempts certain agricultural activities from the permitting requirements of the Clean Water Act.

These activities include “normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.”

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Interpretive Rule

On April 21, 2014, the U.S. EPA and Army Civil Works published in the Federal Register an interpretive rule

This interpretive rule clarifies the permitting exemption provided under section 404(f)(1)(A) of the CWA to discharges of dredged or fill material associated with certain agricultural conservation practices based on Natural Resources Conservation Service conservation practice standards designed and implemented to protect and enhance water quality.

The IR became effective on April 3, 2014

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Interpretive Rule

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The interpretive rule clarifies that 56 specific NRCS agricultural conservation practices are considered “normal farming” activities and are exempt from permitting under 404(f)(1)(A).

To qualify for this exemption, the activities must be part of an “established (i.e., ongoing) farming, silviculture or ranching operation” and the activities must be implemented in conformance with NRCS technical conservation practice standards.

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Interpretive Rule

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Landowners do not need to determine whether discharges associated with these conservation practices are in waters of the United States and they do not need to obtain site-specific pre-approval from either the Corps or the EPA before implementation of these specified agricultural conservation practices.

CWA section 404(f)(2) is not affected by the interpretive rule and continues to apply.

The EPA, the Corps, and the USDA also have entered into a Memorandum of Understanding (MOU) to guide future coordination on the exemption.

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Interpretive Rule

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The interpretive rule was first published in the Federal Register on April 21, 2014

Comments were requested by June 5th The comment period was re-opened on June 10th Comments are being accepted on the interpretive rule

until July 7th

Docket ID No. for submitting comments: EPA-HQ-OW-2013-0820

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Specific Conservation Practices Listed as Exempt under 404(f)(1)(A)

(http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm)

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Practice # Practice Name Creation Date Notes

314 Brush Management Sep-09

315 Herbaceous Weed control Apr-10

320 Irrigation Canal or Lateral Sep-20

326 Clearing and Snagging Sep-10

327 Conservation Cover Sep-10

338 Prescribed Burning Sep-10

342 Critical Area Planting Sep-10

353 Monitoring Well Sep-10

380 Windbreak/Shelterbelt Establishment

May-11

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382 Fence Apr-13

383 Fuel Break Apr-05

386 Field Border Sep-10

388 Irrigation Field Ditch Apr-11

390 Riparian Herbaceous Cover Sep-10

391 Riparian Forest buffer Jul-10

393 Filter Strip Sep-10

394 Firebreak Sep-10

395 Stream Habitat Improvement and Management

Sep-10

396 Aquatic Organism passage Apr-11

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398 Fish Raceway or Tank Sep-09399 Fishpond Management Sep-11400 Bivalve Aquaculture Gear

and Biofouling ControlApr-11

412 Grassed Waterway Apr-10 activities that convert waters to non-waters are not exempt

422 Hedgerow Planting Sep-10423 Hillside Ditch May-08453 Land Reclamation,

Landslide TreatmentFeb-05

455 Land Reclamation, Toxic Discharge Control

Apr-05

460 Land Clearing Sep-11484 Mulching Apr-11

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490 Tree/Shrub Site Preparation Jan-06

500 Obstruction Removal Jan-10

511 Forage Harvest Management Apr-10

512 Forage and Biomass Planting Jan-10

528 Prescribed Grazing Sep-10

533 Pumping Plant May-11

544 Land Reclamation, Abandoned Mined land

Aug-06

544 Land Reclamation, Currently Mined Land

Aug-06

548 Grazing Land Mechanical Treatment

Sep-10 chiseling or deep ripping in wetlands is not exempt

550 Range Planting Apr-10

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Practice # Practice Name Creation Date Notes568 Trails and Walkways Jan-10

575 Animal Trails and Walkways Apr-10

578 Stream Crossing Sep-11587 Structure for Water Control Apr-10

601 Vegetative Barrier Jan-10

612 Tree/Shrub Establishment May-11

643 Restoration and Management of Rare and Declining Habitats

Sep-10

644 Wetland Wildlife Habitat Management

Sep-10

646 Shallow Water Development and Management

Sep-10

647 Early Successional Habitat Development / Management

Sep-10

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Practice # Practice Name Creation Date Notes650 Windbreak/Shelterbelt

RenovationJul-10

654 Road/Trail/Landing Closure and Treatment

Nov-08

655 Forest Trails and Landings Sep-11657 Wetland Restoration Sep-10659 Wetland Enhancement Sep-10660 Tree/Shrub Pruning Jan-06666 Forest Stand Improvement May-11

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Corps Points of Contact

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Points of Contact

Corps Project Managers currently are assigned by geographic area.

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Points of Contact

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Questions?

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clean water act permitting and agricultural activities in minnesota

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